Silvagni v. Wal-Mart Stores, Inc.

United States District Court, D. Nevada

October 30, 2017

CINDY SILVAGNI, Plaintiffs,v.WAL-MART STORES, INC., Defendants.

ORDER (DOCKET NO. 57)

NANCY
J. KOPPE, UNITED STATES MAGISTRATE JUDGE.

Pending
before the Court is Defendant's motion to exclude
Plaintiff's expert (Dr. Babuk Ghuman) with respect to his
supplemental report on Plaintiff's future need for
injection therapy, or alternatively to allow Defendant to
depose Dr. Ghuman and disclose a rebuttal expert opinion.
Docket No. 57. Plaintiff filed a response in opposition, and
Defendant filed a reply. Docket Nos. 58, 59. The Court finds
the motion properly decided without a hearing. See
Local Rule 78-1. For the reasons discussed below, the Court
DENIES the motion to exclude Dr. Ghuman, but
GRANTS the alternative motion to depose Dr.
Ghuman and disclose a rebuttal expert.

I.
BACKGROUND

Plaintiff
alleges that she slipped on a gel-like substance in the bath
aisle of one of Defendant Wal-Mart's stores. See,
e.g., Docket No. 31 at 2. Plaintiff filed suit in state
court, alleging a cause of action for negligence.
Id. Defendant removed the case to this Court on the
basis of diversity jurisdiction. See Docket No. 1.
The expert disclosure deadline in this case expired on June
23, 2016. See Docket No. 18 at 3. Discovery closed
on October 6, 2016. Docket No. 28. No trial date has been
set.

On May
24, 2016, Plaintiff disclosed the expert opinion of Dr.
Ghuman opining that Plaintiff would likely require cervical
injection therapy in the future addressing the C5-6 and C6-7
segments, and estimating the cost for that therapy. Docket
No. 57-3. On June 10, 2016, Plaintiff became aware of a
recommendation that she undergo cervical surgery.
See Docket No. 57-4. On June 14, 2016, Plaintiff
served Defendant with a disclosure of that surgery
recommendation. Id. On July 26, 2016, Plaintiff
underwent cervical fusion surgery with respect to the C5-6
and C6-7 levels. See Docket No. 57-1 at ¶ 10.
On September 30, 2016, Plaintiff disclosed records related
thereto. Id. On October 6, 2016, Plaintiff disclosed
a supplemental report of Dr. Ghuman opining that the cervical
fusion rendered the likely need for future injection therapy
treatments for the C5-6 and C6-7 levels to be “minimal
in nature.” Docket No. 57-6 at 10. Dr. Ghuman
nonetheless opined that, having undergone C5 to C7 fusion,
Plaintiff could be expected to experience pain that requires
injections and other therapy at the C4-5 level. Id.
Dr. Ghuman provided an estimation of costs for that
anticipated future therapy. Id.

A party
must disclose the identity of any expert witness it intends
to use at trial. Fed.R.Civ.P. 26(a)(2)(A). The party must
also provide a written report of the expert. Fed.R.Civ.P.
26(a)(2)(B). Parties must disclose their experts at the times
and in the sequence that the Court orders. Fed.R.Civ.P.
26(a)(2)(D). Parties also have a duty to supplement their
disclosures. See Fed. R. Civ. P. 26(e).

With
regard to expert reports, “the party's duty to
supplement extends to both information included in the report
and to information given during the expert's
deposition.” Fed.R.Civ.P. 26(e)(2). “However, an
expert's duty to supplement under Rule 26(e) is not a
right to supplement at will.” ColonyIns.
Co. v. Colorado Casualty Ins. Co.,
2:12-cv-01727-APG-NJK, 2014 WL 12646048, at *2 (D. Nev. May
28, 2014).

A party may not use a supplemental report to disclose
information that should have been disclosed in the initial
expert report, thereby circumventing the requirement for a
timely and complete expert witness report. Rather,
supplementation under the Rule means correcting inaccuracies,
or filling the interstices of an incomplete report based on
information that was not available at the time of the initial
disclosure.

Id..

“The
time for supplementation is not limited to the discovery
period.” Burger v. Excel Contractors, Inc.,
Case No. 2:12-cv-01634-APG-CWH, 2013 WL 5781724, *3 (D. Nev.
Oct. 25, 2013). Rule 26(e)(2) requires supplementation of
expert reports to occur “by the time the party's
pretrial disclosures under Rule 26(a)(3) are due, ”
which is 30 days before trial unless otherwise ordered by the
Court. See Abila v. United States, Case No.
2:09-cv-01345-KJD-LRL, 2011 U.S. Dist. Lexis. 42944, *4 (D.
Nev. Apr. 14, 2011). “Generally speaking,
supplementation of an expert report is proper where it is
based on new information obtained after the expert disclosure
deadline and the supplemental report was served before the
time for pretrial disclosures.” Colony
Insurance, 2014 WL 12646048, at *2 (collecting cases).
Nonetheless, “[s]upplementation must be provided
‘at appropriate intervals' upon learning new
information. To that end, the Court is mindful of the
‘gaping loophole' which can result when parties
abuse the liberal policy of Rule 26(e) with respect to the
timing of supplemental reports.” Id. at *2 n.4
(internal citations omitted). Courts may therefore exclude an
expert report provided before the time for pretrial
disclosures when the disclosing party engaged in sandbagging
or other improper conduct. See id.

In this
case, the Court finds disclosure of Dr. Ghuman's
supplemental report was timely. The supplemental report is
based on a change of factual circumstances occurring with
Plaintiff's surgery on July 26, 2016. See Docket
No. 57-6 at 10.[1] The supplemental report was served prior
to the deadline for the Rule 26(a)(3) pretrial disclosures
and, indeed, was served within the discovery period.
Compare Id. with Docket No. 28. Morever,
the Court does not find bad faith sandbagging or other
circumstances evidencing misconduct. To the contrary, the
timeline of events lends itself to a finding of a good faith
effort to keep Defendant abreast of Plaintiff's
continuing treatment and a reasonably prompt production of a
supplemental report. Courts have found in similar
circumstances that striking a supplemental expert report was
not appropriate. See Colony Insurance, 2014 WL
12646048, at *2 (holding that supplemental report provided
three days prior to discovery cutoff was timely when based on
new information learned one and three months earlier (citing
Dowling v. Arpaio, 2011 WL 5592909, *1-2 (D. Ariz.
Nov. 17, 2011) and United States v. 14.3 Acres of
Land, 2008 WL 4079272, *6, 9 (S.D. Cal. Aug. 29, 2008)).
The Court similarly finds here that the disclosure of Dr.
Ghuman's supplemental report was timely[2]

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In
fairness to Defendant, however, the Court will allow it an
opportunity to depose Dr. Ghuman and respond with its own
rebuttal expert report. See, e.g., Colony Insurance,
2014 WL 12646048, at *2.[3]That expert report shall be served
within 30 days of this order and must be limited to new
opinions provided in Dr. Ghuman's ...

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